"In March 1988, Altion Maxine Walker offered to pay her nephews, James Lawhorn and his brother Mac Lawhorn, $100 in exchange for murdering her boyfriend, William Berry. The Lawhorns accepted. After they ambushed Berry, Mac Lawhorn shot him, causing him to fall. James Lawhorn (hereinafter Lawhorn) then heard Berry making 'gurgling noises' and shot him repeatedly 'to make sure he was dead.'"

Lawhorn, whose guilt was undisputed, was sentenced to death in Alabama. Today, over two decades later, Justice Scalia (joined by Justices Thomas and Alito) makes a persuasive case that an Eleventh Circuit court acted lawlessly by improperly using the federal habeas statute to throw out the sentence. Allen v. Lawhorn, 562 U.S. __ (2010) (dissent from denial of certiorari). As Scalia notes, this is a persistent problem in the lower courts, where judges are refusing to apply the law as Congress wrote it.

The Eleventh Circuit opinion was issued by Judges Birch, Barkett, and Wilson. Those with long memories may recall that Rosemary Barkett's confirmation was held up in 1993-94 because of concerns she would not apply the death penalty. Judge Birch, however, was a George H.W. Bush appointee.